by
Shin was arrested for DWI. Shin declined the arresting officer's demand that he provide a blood and breath sample. The officer then read Form DC-233, “Implied Consent Declaration” to Shin, Code 18.2-268.3(C), which stated: “You shall submit to a breath test. If the breath test is unavailable or you are physically unable to submit to the breath test, a blood test shall be given.” Shin refused to provide a sample and signed a “Declaration of Refusal,” stating that he had been advised of the law and the penalty for unreasonably refusing to provide samples. Shin was convicted of DWI - second offense, unreasonable refusal of a breath or blood test - first offense, and improper lane change. A jury subsequently acquitted Shin of DWI but convicted him of improper lane change. The circuit court found Shin’s refusal unreasonable, in violation of Code 18.2-268.3, and suspended Shin’s license for one year. The Supreme Court of Virginia affirmed, rejecting Shin’s arguments that the implied consent law imposed an unconstitutional condition upon the privilege of driving, was unconstitutionally vague for lacking an objective definition of reasonable refusal, and violated Article I, section 8 of the Virginia Constitution by compelling him to provide the Commonwealth with potentially incriminatory evidence. View "Shin v. Commonwealth" on Justia Law

by
In 2003, Rickman was convicted of five counts of aggravated sexual battery, two of forcible sodomy, one of abduction of a minor, one of object sexual penetration, one of taking indecent liberties with a minor, and one of contributing to the delinquency of a minor, arising from Rickman’s abuse of his biological and step-children over several years. He was sentenced to 75 years of imprisonment with 60 years suspended. In 2015, the Commonwealth sought to have Rickman civilly committed under the Sexually Violent Predators Act, Code 37.2-900 to -921 (SVPA), which calls for a hearing within 90 days to determine whether probable cause exists. The respondent may waive a hearing and either party may request a continuance. The deadline for Rickman's probable-cause hearing was November 26. The parties exchanged emails to find an available date for the assistant attorney general, the Commonwealth’s expert, Rickman’s counsel, and the court. They settled on January 8, 2016. In an email to the assistant attorney general and court docket clerk, Rickman’s counsel acknowledged that she was available that day, but “[would] need to note an objection. Neither party sought a continuance. After November 26, Rickman unsuccessfully moved to dismiss the SVPA petition. The circuit court civilly committed Rickman. The Supreme Court of Virginia affirmed. The requirement, even if violated, does not require dismissal of the SVPA petition. The options are orders: granting a conditional, temporary release, expediting the proceeding, and disallowing evidence at the hearing. The court should make its discretionary decision by balancing any prejudice to the respondent, the length of and reasons for the delay, and any bad faith. View "Rickman v. Commonwealth" on Justia Law

by
The carbon monoxide detector in an apartment sounded. A maintenance worker replaced the batteries; the alarm later sounded again. The following morning, tenants called Virginia Natural Gas (VNG). VNG’s inspector measured the apartment’s CO levels as hazardous, turned off the gas, and “red-tagged” the furnace. A maintenance worker later declared that he had checked the furnace and vent pipes for leaks, found an attic vent pipe loose, reattached it, and rechecked the CO level, Although not licensed to make heating system repairs, he used screws to secure the sections, contrary to specifications. A code enforcement officer determined that CO levels were within the acceptable range, without visiting the attic or inspecting the equipment. Weeks later, the alarm sounded again. A VNG inspector red-tagged the furnace. With a new furnace installed, the CO levels remained high. The adjoining apartment's furnace was venting into the attic. When the flue was repaired, CO levels dropped. The tenants suffered injuries. In their suit, the court ruled that the tenants failed to establish the requisite level of negligence for punitive damages. They were permitted, over the landlord’s objection, to increase their prayers for compensatory damages. The jury awarded three tenants $200,000 each and a fourth $3,500,000. The Supreme Court of Virginia reversed in part and remanded for a new trial. The court erred in admitting the testimony of an environmental medicine specialist, which had not been disclosed under Rule 4:1(b)(4)(A)(i); erred in admitting testimony regarding alleged defects in the installation of the new furnace--such defects were after-the-fact and not relevant; in permitting amendment of the prayers for relief; in granting a spoliation instruction with regard to tenants’ inability to inspect the furnace. View "Emerald Point, LLC v. Hawkins" on Justia Law

by
Pijor was found guilty of perjury, Code 18.2-434, based on testimony Pijor gave during a larceny trial in which he was acquitted. Pijor, having testified that he had not taken his ex-girlfriend’s dog, was later found to be in possession of the dog. Pijor claimed he had found the dog after the trial. The Court of Appeals rejected Pijor’s arguments that the Commonwealth was collaterally estopped from indicting him for perjury due to his previous acquittal and that the evidence was insufficient to prove he committed perjury. The Supreme Court of Virginia affirmed. Pijor failed to prove that the precise issue of fact he sought to preclude--that he had not seen and had no information about the dog-- was determined in the larceny trial. A rational factfinder could have found all of the necessary elements for the crime of perjury established beyond a reasonable doubt. View "Pijor v. Commonwealth" on Justia Law

by
Ahmed alleged that as an inmate at Greensville Correctional Center, he suffered an injury to his head and neck on September 10, 2013, when the telephone he was using fell from the wall and struck him. Ahmed filed informal complaints on the same day against the Virginia Department of Corrections (DOC). DOC responded on September 27. Ahmed filed grievances on September 30, which the DOC ruled to be “[u]nfounded” on October 22. On October 24, Ahmed filed an appeal, triggering a “Level II” review under the Inmate Grievance Procedure. DOC affirmed on October 30, informing Ahmed that “Level II is the last level of appeal” and that he has “exhausted all administrative remedies.” Ahmed filed notice of a tort claim against the Commonwealth on September 22, 2014, with his required affidavit verifying that he had exhausted administrative remedies. Ahmed filed a complaint on February 24, 2016. The circuit court dismissed, finding that Ahmed’s notice of claim was not filed within one year (VTCA 8.01-195.7). The Supreme Court of Virginia reversed. Code section 8.01-195.3(7) states that “[t]he time for filing the notice of tort claim shall be tolled during the pendency of the grievance procedure." The grievance process continued until October 30, 2013. View "Ahmed v. Commonwealth" on Justia Law

by
The circuit court did not err by concluding that a holographic writing did not comply with Va. Code 64.2-403 or -404. After the decedent died, the executor of the decedent’s estate submitted the decedent’s will and a writing written across a divider in a binder filled with estate planning documents that the executor argued was a codicil. The circuit court clerk admitted the will to probate but concluded that the writing was not a validly executed codicil. The executor appealed. The circuit court refused to probate the writing as a codicil, concluding that it did not comply with the statutory requirements set forth in section 64.2-403. The Supreme Court affirmed, holding that the record supported the circuit court’s rulings that the writing was neither signed in the manner required by section 64.2-403(A) nor intended to constitute a codicil. View "Irving v. Divito" on Justia Law

Posted in: Trusts & Estates

by
At issue was whether evidence of a search must be suppressed under Va. Code 19.2-54 because a magistrate incorrectly faxed only portions of a search warrant to the clerk of the circuit court. Defendant was charged with manufacturing methamphetamine. Defendant moved to suppress the evidence, arguing that the magistrate’s failure to properly fax the search warrant to the clerk’s office rendered the warrant invalid. The trial court agreed that the warrant was defective but denied the suppression motion on the ground that the search was justified by exigent circumstances. The court of appeals reversed, arguing that section 19.2-54 rendered the fruits of the search inadmissible as a matter of law. The Supreme Court reversed and reinstated the trial court’s order of conviction, holding that, even assuming that the magistrate’s incomplete faxing rendered the search warrant invalid under section 19.2-54, the search was justified as a warrantless search under the exigent circumstances exception to the warrant requirement. View "Commonwealth v. Campbell" on Justia Law

by
Where an income tax return has not been filed by the return date on a writ of fieri facias, any potential income tax refunds for the applicable tax year are not “in possession of or under the control of the debtor” so as to be reachable by the lien under Va. Code 8.01-501 and -507. Creditors obtained separate judgments against Debtors and issued to Debtors writs of fieri facias. The general district court entered transfer orders in favor of Creditors requiring Debtors to turn over their 2015 income tax refunds to Creditors. Debtors appealed the transfer orders to the circuit court, arguing that the general district court lacked subject matter jurisdiction to enter the transfer orders because Debtors had not filed their 2015 income tax returns as of the return date of the writ. The circuit court ruled in favor of Creditors. The Supreme Court reversed, holding that, for purposes of Va. Code 8.01-507, Debtors were not entitled to, nor did they have a fixed property interest in, the 2015 income tax refunds at the time of the return date on the writ of fieri facias. View "Shifflett v. Latitude Properties, Inc." on Justia Law

Posted in: Tax Law

by
At issue was whether, during the sale of JB&A, Inc., a government contracting firm, to MCR Federal, LLC, another government contractor, MCR’s false statement of that a representation and warranty in the contract remained true was a fraudulent act independent of the contractual relationship such that JB&A properly brought actions for both fraud and breach of contract. The trial court held MCR liable for breach of contract and constructive fraud and awarded $12 million in compensatory damages. The Supreme Court affirmed in part and reversed in part, holding (1) JB&A did not bring proper claims for actual or constructive fraud; (2) the evidence presented at trial established that MCR’s breach of contract caused JB&A substantial damages; (3) the trial court properly granted compensatory damages of $12 million and pre-judgment interest of $3.5 million; and (4) the trial court erred in awarding JB&A attorney’s fees in the amount of $1.9 million for prevailing on its claim of constructive fraud. View "MCR Federal, LLC v. JB&A, Inc." on Justia Law

by
The Supreme Court affirmed the order of the circuit court dismissing Plaintiff’s claims of undue influence in this action seeking to void a trust established by the decedent eight days before his death. Plaintiff, the decedent’s wife, argued that there were suspicious circumstances surrounding the execution of the trust and that Defendant, the drafter of the trust, used his position to procure the trust. When Defendant separately filed a complaint seeking to establish the will established by the decedent at the same time he established the trust as the last true will and testament of the decedent, Plaintiff filed a counterclaim asserting that the will was executed under Defendant’s undue influence and was therefore void. The circuit court sustained Defendant’s plea in bar to the counterclaim and then granted summary judgment to Defendant on the complaint claim. The Supreme Court affirmed, holding that the circuit court did not err in dismissing, with prejudice, Plaintiff’s claims of undue influence. View "Kim v. Kim" on Justia Law

Posted in: Trusts & Estates